LEGH against WARREN. knew not how the fame have been used or ftocked, nor with what cattle, nor what tithes have arifen and fallen thereon. He denied the manner of tithing as in the bill stated; and insisted, that he ought not to pay tithes in kind, but the fums following, viz. fifteen fhillings for the tithes of calves arifing by cows kept and states other at or in Poynton Hall, and depafturing the faid park, demefne, cuftomary payand lands thereto belonging; and twelvepence yearly, in lieu of ments; all fmall tithes arifing or demandable for or in refpect of Easter offerings or titheable matters arifing at, in, or about Poynton Hall, and the orchards, gardens, and other titheable matters thereto belonging, commonly called the white tithes, or Eafter roll (faving the tithes of lamb and wool); that there has been always paid a and that 35. acustomary rate for Poynton Mill, of three fhillings yearly, and no year is paid for more; and that there was due to the plaintiff, for tithes of wool the mill; and lamb of sheep kept and depastured in Poynton Park and demefnes in 1702, four fhillings; and he acknowledged the arrears of twelvepence and three fhillings as aforefaid for four years paft, and fifteen fhillings for calves for three years, and four fhillings for lamb and wool for 1702, all which he was ready to pay. He denied, that he or his family had dwelt at Poynton for the time in the bill mentioned, but at Stockport, in the parish of Stockport, except for a day or fo. He alfo denied that there was any fuch but denies the cuftom to pay or deliver a fat buck or doe in their feafon, or plaintiff's right that, by any cuftom, or prefcription, or ufage time out of mind, to hunt a buck or for any time whatsoever, or by virtue of any agreement, or as a modus or customary rate or payment in lieu of tithes, by any lawful title, way, or means, or upon any other colour or pretence whatsoever, a fat buck and doe have been due or payable by the defendant or any of his ancestors to the plaintiff or any of his ancestors, as in the bill is fet forth. He faid, that upon his taking a leafe of the tithes of corn and hay of Poynton and Worth from the plaintiff's father for thirty-one years, if he fhould fo long live, at thirty-five pounds for the firft year, and thirtythree pounds during the remainder of the term, it was then infifted on, that the plaintiff fhould have of the defendant a fat buck and doe, or elfe that he fhould have no fuch leafe, and that fooner than lofe the leafe he confented to fuch a claufe to be put in, and that it had fince been complied with. He confeffed, there remained twenty-feven pounds, fifteen fhillings, in arrear of rent for the tithe of corn and hay of Poynton and Worth for 1703, by virtue of the faid leafe. 1 The plaintiff replied; the defendant rejoined; and witneffes were examined on both fides; and upon debate of the matter, the modus of three fhillings for the mill being agreed to by both parties, IT IS ORDERED AND DECREED BY THE COURT, that the faid defendant fhall account with and pay to the plaintiff all fuch monies as are in arrear for the tithes of hay and corn arifing or doe. The defendant decreed to pay in Poynton and the tithes of hay within Worth; LIGH againft WARREN. the mill; within the faid township of Poynton and Worth, and shall continue the future payments thereof during the continuance of the faid demife, according to the feveral yearly rates, viz. thirty-five pounds, ten fhillings, for Poynton, and fix pounds for Worth; and the 3s. for and fhall alfo pay to the faid plaintiff the faid modus of three fhillings for the faid mill, and all the arrears thereof; and the faid defendant is to go to account for all fmall tithes and the tithe of wool, lambs, and calves; and it is referred to the deputy remembrancer to take and state the faid account, who is to report the matter relating to the pigeons fpecially for the further judgment of the court; and as to the plaintiff's demand by his bill of a buck and a doe, the faid bill is hereby to ftand difmiffed, withof the buck and out cofts. and tithes of wool, lamb, and calves; but the tithe of pigeons refused; and the claims doe d.fmiffed. EDW. WARD. THO. BURY. S. LOVELL. HILARY TERM 4. Q. ANNE. tor of Bottesford, CAISTER against HORNSBY. Lincolnshire, 19th February 1705. The impropria- THE bill stated, that the plaintiff, in right of his wife Mary, was impropriator of the parfonage impropriate of Bottesford, in Lincolnshire, in the county of Lincoln, and entitled to the tithes of all forts of vicar the tithes corn, hay, hemp, flax, rape, turnips, barren cattle, and wool, within that parish. claims from the of wool. tenant to his the plaintiff had cows, for which he paid no tithe milk. The vicar fays, The defendant faid, that he had been vicar of Bottesford for that he kept a thirty years paft, and was, by the endowment of that vicarage, few sheep on a entitled to all small tithes (except wool); that the plaintiff was common appur entitled to the tithes of corn and hay (except in tofts and crofts, glebe, and that which he infifted belonged to him); and that he ought not to pay any tithes to the parfon or rector of any thing arifing upon or out of the glebe lands in his own poffeffion. And he fet forth his number of fheep, and the quantities and values of the wool; but infifted, that he ought not to pay any tithes of the faid wool, in regard he kept the fheep yearly upon a large common, wherein he had right of common for the fame, and greater quantities, as belonging to the glebe which he enjoyed, as belonging to the vicarage, by virtue of the faid endowment. He also faid, that he enjoyed a fmall parcel of land not glebe, which was neceffary for the maintenance of his family, and that in extremity of weather in winter he brought his sheep into the faid ground not glebe; but nothing ought to be demanded for the tithes ; for that the plaintiff had cows on grounds not belonging to the parfonage, which afforded much milk, the tithes of which belonged to the defendant, but he never had any for the fame ; and believed, that if every thing due from the parfon and vicar Was was stated, it would be equal; more efpecially as the plaintiff, for feveral years, had gathered of other parishioners feveral fmall tithes which belonged to the defendant. He faid, that his faid vicarage was not communibus annis worth thirty pounds per annum. CAISTER against HORNSBY. The plaintiff replied; the defendant rejoined; and witneffes The bill were examined on both fides; and upon reading feveral depo- miffed. fitions, and upon full debate, it is ordered by the court, that the faid bill be difmiffed, with cofts to be taxed. GREENWAY against THE EARL OF KENT; et è HILARYTIM Contra. Herefordfbire, 31 January 1705. 4. Q. ANNE. from the faid poles. THE HE bill ftated, that the plaintiff was, and for twenty-two The vicar of years paft had been, vicar of the parish of Walford, in the Walford,in Here for dfbire, claims county of Hereford, and entitled to all manner of vicarial tithes, the tithe of and particularly to the tithes of wood and bark; that the late wood cut down Earl of Kent was in his life-time, and the defendant the prefent and fold; of earl, as executor of his father, is poffeffed of a coppice called the the bark peeled Chafe, and other woodland within the faid parish and the titheable wood; of unplaces thereof; that they, or one of them, in 1701 and 1702, derwood fold to cut down upon the Chafe feveral quantities of wood, which they iron masters for fold, and alfo ftripped and fold great quantities of bark from the fuel; and of faid wood and poles fo cut down; that the greatest part of the Japlings cut for faid wood and poles was not of twenty years growth and if any were, the fame were, but fome few poles growing fparfim from the ftubs or stocks of other trees, and were not fit for timber, but only for firewood, making of laths, or fuch like uses, and were fold to the iron mafters, who used the fame for fuel at their furnaces; that the defendant pretends, that if any tithes. were due for all or any of the faid wood or bark, the plaintiff ought to allow thereout the charges of cutting, cording, and ftripping the fame, and twenty-one cords to the fcore, though, by the custom of the faid parish, and other adjacent parishes, the owners of woods, time out of mind, are ufed and ought to fize, make up, and cord their wood into marketable ware, and then to fet out the tithes or tenth part thereof. woods and cop The defendant confeffed, that he was feifed of the wood called The defendant the Chafe, in the parishes of Walford and Rope, and other woods ftates the feveral in the parish of Rofs Wefton under Penyard, and other adjacent pices he is pofparishes in the faid county, which, upon the death of his father feffed of, in 1702, came to him; which faid woods confift of innumerous quantities of timber trees; of oak of thirty years growth and upward, preferved for timber by his ancestors at the respective fallages thereof; and alfo of coppice wood and underwood of and the manner feveral forts under twenty years growth; that his father used to out the tithe caufe the young oaks under twenty years growth to be ftripped, thereof. and in which he fet GREENWAY ag inft THE EARL OF KENT; and the bark to be ranked by itfelf, diftinct from the barks of the timber trees of thirty years growth, and then caufed the coppice or underwoods to be fallen, cut out, and sized into billets, and corded by itself, and fo delivered the fame to the iron masters; and caused the stubbs and stocks on which fuch underwood ufually grew to be cut off clofe to the ground, and corded with fuch coppice wood; and then caufed the timber trees of thirty years growth to be stripped, and the bark to be picked by itself, and fo delivered to the buyers; and then the timber trees of that growth to be fallen, and the found and merchantable parts thereof to be fold, and the other employed in repairs, &c.; and the lops and offals he caufed to be fized into billets, ranked and corded by itself apart from the coppice woods, and delivered the fame to the iron mafters; and he said, that all fuch timber trees of thirty years growth and upwards were entirely free from the payment of tithes, and therefore he ufed feparate management, that he might know for what part he ought to pay tithe, and what was tithe free; that the usual method of tithing wood in thofe parts hath been, time out of mind, by a proportionable share of the money arifing by the fale thereof, the perfon entitled thereto making a proportionable allowance for the cutting and stripping; and that his father having made many fallages, ufed the above management thereof; that he believed his father ordered the wood in queftion to be fallen, and feparately managed as aforefaid; but before it was completed, the defendant ordered the carrying on and finishing thereof according to his father's method, which was done accordingly. He further confeffed, that if the plaintiff be vicar of Walford, he has a right to the coppice wood, bark, and underwood so separately ftripped, cut, corded, and delivered out of the chafe in the faid years; but he infifted, that he has no right of tithe in the timber trees of oak of thirty years growth and upwards, or the bark or offal of the fame, not being mixed; and therefore he had refused to pay tithe for the fame. He further stated, that the plaintif had acquiefced without demanding his tithes till September 1702, when the fallage was almoft complete; and his father dying in Auguft following, whereupon the defendant became entitled, but was not applied to about the premises. He faid, that as soon as the tithcable effects could be brought to a computation, a particular was delivered to the plaintiff, ftating an account of the wood and bark of the faid fallage; that for the better diftinction of the faid wood, the bark of the timber trees of oak of thirty years growth was called polewood, and the cord wood made of the offal thereof was called pole bark, both which he infifted were tithe free; and the bark and cord wood under twenty years growth was called coppice bark and coppice wood. He alfo confeffed, that the plaintiff applied to him, and infifted upon a right of tithe of timber trees, pole wood, and pole bark; but that five fhillings per cord for the tithe of three foot wood is a full tenth of the nett money money arifing by fale of the coppice woods, being allowed for his expences and damages in the management thereof; and that he ordered his agent to give the plaintiff five fhillings and fixpence for three foot wood, which he ftill is ready to pay. But he denied the substration of any tithe wood, other than the trees of thirty years growth and upwards; and believed that all the pole wood bark, and underwood were fold to fuch perfons, and at fuch prices as in the schedules to his anfwer; and he said, that he is ready to pay the tenth of the money of the coppice wood; but hoped, that he is not liable to do fo for the timber of thirty years growth and upwards, nor for the pole wood or pole bark made from the stripping and offal thereof. To which anfwer the plaintiff replied, and the defendant rejoined. GREENWAY against THE EARL OF KENT; et è Contra. The defendant filed his crofs bill against the plaintiff, thereby Files a crofs bill, fetting forth the method used in the felling and tripping of wood and of paying tithes for the fame, to the fame effect as in his anfwer aforefaid; and infifted, that it is the cuftom to pay tithes by a fhare of the money arifing from the fale of fuch wood; that his father, in 1701, propofed to Greenway, that he should have a fhare of the money fo arifing; and that a meeting was appointed; but that on the defendant's filence, he disposed of the falling, and delivered an account to the defendant with offers which he refused. The bill therefore prayed, that the defendant may answer the premises. The vicar, by his anfwer, confeffed, that the late Earl of which the vicas Kent made fuch feparate management as in the bill; but faid, anfwers. that the fame is a practice altogether new, and was never offered at till eight years fince; he believed, that it has been usual to take a tenth part of the money arifing by fale in lieu of tithes ; but infifted, that he is not obliged to do fo; and said, that it is customary to treat about the tithes before the falling, unless the fame be paid in kind; and he fet forth the earl's letters, and his application to him. He alfo confeffed, that an offer had been made at five fhillings and fixpence per cord for the coppice wood, allowing twenty-one cords to the fcore, which he had refused, having as much paid him in 1683 and 1685, without allowing twenty-one cords to the fcore, and including the pole wood of twenty years growth and upwards, which was not feparated, or denied to be titheable; and he infifted, that he has a right to the tithes of pole wood as coppice wood, the fame having been paid time out of mind till fuch feparate management was made as aforefaid. The plaintiff replied; the defendant rejoined'; and witneffes were examined in both caufes; and the caule came on to be heard on the tenth of July laft: and upon reading the depofi-` tions of witneffes taken in the original caufe; and upon long debate of the matter, it is ordered by the Court, that the caufe VOL. I. I i be |